Bombay High Court
Irfan Alim Sayyad vs The State Of Maharashtra on 31 January, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:5249
58-BA3730-2023.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 3730 OF 2023
Irfan Alim Sayyad ...Applicant
Versus
State of Maharashtra ...Respondent
Mr. Rajendra Bidkar, for the Applicant.
Mr. Y. M. Nakhwa, APP for the State/Respondent.
API Vinayak Mane, Mumbar Police Station, present.
CORAM: N. J. JAMADAR, J.
DATED: 31th JANUARY, 2024
ORDER:
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1. Heard the learned Counsel for the parties.
2. The applicant - accused No.1 preferred this application
for bail in Special Case No.1074 of 2022 arising out of CR
No.737 of 2022 registered with Mumbra Police Station,
Thane, for the offences punishable under Sections 22 and 29
read with Section 8(c) of the Narcotic Drugs and Psychotropic
Substances Act, 1985, ("the NDPS Act").
3. On 11th August, 2022, Mumbra Police were on patrolling
duty. A secret information was received that two persons
were selling MD near Prime Hospital, Kausa, Mumbra. A
surveillance was conducted. The applicant and co-accused
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Rajjak Rangrej came near 'Y' junction in front of Prime
Hospital . They were accosted. After apprising the applicant
and co-accused their right to be searched in the presence of
Gazetted Officer or Magistrate, the applicant and co-accused
were searched in the presence of panch witnesses. It is
alleged, upon the search of the applicant, in the left pocket of
the trouser of the applicant, a plastic pouch containing a
white substance was found. It appeared to be MD. It weighed
72 gm. Contraband article was seized and samples were
collected. The applicant came to be arrested on 12 th August,
2022.
4. Mr. Bidkar, the learned Counsel for the applicant,
submitted that the search of the applicant which is the
linchpin of the prosecution case is vitiated on account of
clear non-compliance of the mandate contained in Section 50
of the NDPS Act. The learned Counsel took the Court
through the allegations in the FIR and the assertions in the
seizure panchnama. In the FIR as well as the seizure
panchnama, it has been recorded that the applicant and the
co-accused were apprised that the empowered officer was
himself a Gazetted Officer and if the applicant and the co-
accused so opted, 'other' Gazetted Officer would be called.
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Such apprisal, according to the learned Counsel for the
applicant, cannot be said to be in conformity with the
mandate of Section 50 of the NDPS Act.
5. The learned APP, on the other hand, submitted that
there is necessary compliance of the mandate contained in
Section 50 of the NDPS Act. An endeavour was made to bank
upon the apprisal note dated 11th August, 2022 (page 35 of
the application). Under the said apprisal note the empowered
officer seem to have informed the applicant that he was a
Gazetted Officer and if the applicant wanted to have his
search conducted in the presence of 'other' Gazetted Officer
apart from him, then, such a Gazetted Officer could be called.
6. Mr. Bidkar, the learned Counsel for the applicant,
submitted that the aforesaid apprisal note does not advance
the cause of the prosecution. On the contrary, the said
apprisal note underscores the non-compliance.
7. I find substance in the submission of Mr. Bidkar. An
impression that the empowered officer himself is a Gazetted
Officer and thereby implying that the search would be legal
has the effect of influencing the exercise of option by the
person to be searched. The use of the expression, if so
desired, the raiding party would call 'other' Gazetted Officer
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has the propensity to give an impression to the person to be
searched that the officer empowered to search, being a
Gazetted Officer, he cannot exercise the right to be searched
before the Gazetted Officer or Magistrate.
8. Secondly, the apprisal note (page 35) indicates that the
applicant was not given the option to be searched in the
presence of the Magistrate. It is true in the FIR and the
seizure memo there is a reference to the fact if so desired the
applicant can be searched before, 'other' Gazetted Officer or
Magistrate. However, the matter is required to be considered
from the perspective of effective exercise of the right to be
searched before the Gazetted Officer or Magistrate.
9. It is well recognized that the compliance of the
provisions contained in Section 50 of the NDPS Act is
mandatory. Substantial compliance would not suffice and
there must be strict compliance with Section 50(1) of the
NDPS Act by the authorised officer.
10. It would be suffice to make a reference to the
Constitution Bench judgment of the Supreme Court in the
case of Vijaysinh Chandubha Jadeja vs. State of Gujarat1,
wherein the Supreme Court enunciated that the concept of
1 2011(1) SCC 609.
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"substantial compliance" with the requirement of Section 50
of the NDPS Act introduced and read into the mandate of the
said Section in Joseph Fernandes vs. State of Goa 2 and
Prabha Shankar Dubey vs. State of M.P. 3, Krishna Kanwar
vs. State of Rajasthan4 is neither borne out from the language
of sub-section (1) of Section 50 nor it is in consonance with
the dictum laid down in State of Punjab vs. Baldev Singh5. In
Baldev Singh (supra) the Supreme Court emphasized that in
so far as the obligation of the authorized officer under sub-
section (1) of Section 50 of the NDPS Act is concerned it is
mandatory and requires strict compliance. Failure to comply
with that provision would render the recovery of the illicit
article suspect and vitiate the conviction and sentence of an
accused, where the conviction has been recorded only on the
basis of the possession of the illicit article with the person of
the accused during such search.
11. The conspectus of the aforesaid consideration is that
since the search appears to have been prima facie vitiated, an
inference become justifiable that the applicant may not be
guilty of the offence punishable under Section 21(b) read with
2(2000)1 SCC 707.
3(2004) 2 SCC 56.
4(2004) 2 SCC 608.
5(1999) 6 SCC 172.
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Section 8(c) of the NDPS Act. The Court is not informed that
there are antecedents of the applicant, which would justify an
inference that, if released on bail, the applicant may indulge
in identical offences.
12. The applicant is in custody since 12th August, 2022. It
is unlikely that the trial can be concluded within a
reasonable period. I am, therefore, impelled to exercise the
discretion in favour of the applicant.
13. Hence the following order:
:ORDER:
(i) Application stands allowed.
(ii) The applicant Irfan Alim Sayyad be released on bail in
Special Case No.1074 of 2022 arising out of CR No.737
of 2022 registered with Mumbra Police Station, Thane,
on furnishing a P.R. Bond of Rs.1,00,000/- with one or
more sureties in the like amount.
(iii) The applicant shall mark his presence at the Mumbra
Police Station on the first Monday of every alternate
month between 10.00 am. to 12.00 noon for the period
of three years or till conclusion of the trial, whichever
is earlier.
(iv) The applicant shall not tamper with the prosecution
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evidence. The applicant shall not directly or indirectly
make any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade
him from disclosing the facts to Court or any police
officer.
(v) On being released on bail, the applicant shall furnish
his contact number and residential address to the
investigating officer and shall keep him updated, in
case there is any change.
(vi) The applicant shall not indulge in identical activities
for which he has been arraigned in this case.
(vii) The applicant shall regularly attend the proceedings
before the jurisdictional Court.
(viii) By way of abundant caution, it is clarified that the
observations made hereinabove are confined for the
purpose of determination of the entitlement for bail
and they may not be construed as an expression of
opinion on the guilt or otherwise of the applicant and
the trial Court shall not be influenced by any of the
observations made hereinabove.
Application stands disposed.
[N. J. JAMADAR, J.]
